In the Matter of the Succession of Wayne Edmond Breen ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
cen
NO. 2021 CA 0802
4) I} THE MATTER OF THE SUCCESSION OF WAYNE EDMOND
BREEN
Consolidated with
NO. 2021 CA 0803
DOCTORS FOR WOMEN MEDICAL CENTER, LLC, CRAIG M.
LANDWEHR MD, LLC AND CRAIG M. LANDWEHR, MD IN HIS
CAPACITY AS A TRUSTEE OF THE DOCTORS F OR WOMEN
MEDICAL CENTER, LLC PROFIT SHARING PLAN AND TRUST
VERSUS
PATRICK VERNON BREEN, RYAN MICHAEL BREEN, DEVON
THOMAS BREEN, BRIDGET BREEN DUNBAR, SEAN MICHAEL
BREEN, KACIE BREEN, INDIVIDUALLY AND IN HER
CAPACITY AS TUTOR OF THE MINOR CHILD, AIDEN BREEN,
HUB INTERNATIONAL GULF SOUTH LIMITED, A DIVISION OF
HUB INTERNATIONAL MIDWEST LIMITED, MERRILL LYNCH,
FENNER AND SMITH INC. AND WAYNE E. BREEN MD, LLC
JUN 9 3 2022
Judgment Rendered:
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On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2015-12925 c/w 2015-30176
Honorable William H. Burris, Judge Presiding!
Honorable Scott Gardner, Judge Presiding?
' Judge Burris signed the April 27, 2020 judgment at issue in this appeal.
17 * Judge Gardner signed the March 14, 2017 judgment.
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Richard Ducote
Covington, LA
David S. Daly
Elliot M. Lonker
New Orleans, LA
Michael O. Adley
Lafayette, LA
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Attorney for Defendant-Appellant,
Kacie Breen
Attorneys for Defendant-Appellee,
Alyce B. Landry, Court Appointed
Independent Administratix
Attorney for Defendants-Appellees,
Barbara Irwin and the Law Firm of
Pujol, Pryor & Irwin, LLC
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BEFORE: WHIPPLE, C.J, PENZATO, AND HESTER, JJ.
HESTER, J.
This matter is before us on appeal by Kacie Breen, the surviving spouse of a
testator, from judgments of the trial court ordering the payment of fees and expenses
relative to the administration of an estate.
FACTUAL AND PROCEDURAL HISTORY
Dr. Wayne E. Breen died testate on March 1, 2015, survived by his spouse,
Kacie Magee Breen; their minor son; five adult children from a previous marriage?
(hereinafter, the “Breen adult children”); and Aaron Dylan Knapp, Dr. Breen’s adult
son from a previous extra-marital relationship. This proceeding was instituted on
March 6, 2015 by Mrs. Breen with the filing of a Petition to Appoint Notary to
Search for Testament (“Petition”).
On March 23, 2015, J effrey Dunbar, the husband of Dr. Breen’s only
daughter, submitted an application to the trial court seeking to be appointed as the
provisional administrator of the estate. Mr. Dunbar noted that the copy of Dr.
Breen’s purported testament attached to the Petition identified him as the alternate
independent executor while acknowledging that Mrs. Breen was the first named
independent executrix. However, the application also indicated that Mrs. Breen shot
and killed Dr. Breen, that the St. Tammany Parish Coroner classified Dr. Breen’s
death as a homicide, and that the facts and circumstances of the shooting were still
under investigation, including whether any criminal action was committed by Mrs.
Breen.‘
On March 31, 2015, Mrs. Breen filed an application seeking to be appointed
as provisional administrator. Thereafter, the trial court set the matters for hearing
3 Bridget Breen Dunbar, Patrick Breen, Sean Breen, Ryan Breen, and Devin Breen are the
adult children of Dr. Breen’s first matriage.
* We note that at the conclusion of an investigation by the St. Tammany Parish Sheriff's
Office, the evidence and information supported Mrs. Breen’s account of the facts surrounding Dr.
Breen’s death, which was the result of a justifiable homicide. Moreover, the St. Tammany Parish
District Attorney convened a Grand Jury, which returned a “No True Bill” in the matter on April
7, 2016.
on April 21, 2015. At the conclusion of the hearing, the trial court appointed both
Mr. Dunbar and Mrs. Breen as co-provisional administrators, dividing the
succession management responsibilities between them.
In the months following the appointment of the co-provisional administrators,
competing petitions were filed by Mrs. Breen seeking to probate Dr. Breen’s will
and by Mr. Dunbar and the Breen adult children seeking to annul the will.
Additionally, a Motion to Remove Mts. Breen as Succession Representative and
Appoint Independent Third Party was filed by Sean, Ryan, Patrick, and Devin Breen
on June 8, 2015, anda hearing was set for June 18, 2015. Prior to the hearing, the
trial court advised that all parties agreed to appoint a third-party administrator during
a pre-trial conference, and the trial court directed counsel for Mrs. Breen to prepare
a judgment to that effect, which judgment was later signed on August 27, 2015.
Ultimately, the parties submitted a Consent Motion and Order Appointing
Independent Administrator and Evidencing Letters of Independent Administration,
which motion and order appointed Alyce B. Landry as the Independent
Administrator of the Succession of Wayne Edmund Breen, having all rights, powers,
and duties of an independent administrator as provided in La. Code Civ. P. art. 3396,
et seq. Included with the consent motion and order was the engagement letter of Ms.
Landry, which was signed by counsel for all parties. Ms. Landry took her oath of
independent administration on August 5, 2015 and was immediately thrust into a
highly contentious succession proceeding with numerous additional lawsuits borne
as a result of Dr. Breen’s death, one of which, a concursus proceeding instituted by
>On August 12, 2015, the Breen adult children filed a petition within the instant proceeding
seeking to have Mrs. Breen declared an unworthy successor pursuant to La. Civ. Code art. 941.
While the petition for declaration of unworthiness was pending, two life insurance companies
Dr. Breen’s former medical practice, was consolidated with the instant succession
proceeding.®
The record, though designated on appeal by Mrs. Breen, demonstrates
multiple occasions in which Ms. Landry and Mrs. Breen were at odds.
On December 2, 2015, Ms. Landry filed a motion and rule to show cause for
accounting from Mrs. Breen, alleging that Mrs. Breen, the prior co-provisional
administrator, refused to provide accounting despite requests for accounting and an
inventory, which motion was granted. On January 19, 2016, Mrs. Breen filed a
motion and order to compel the independent administrator to pay a reasonable
monetary allowance from the assets of the succession for maintenance, which Ms,
Landry opposed, in part, on the basis that the succession did not currently have liquid
assets with which it could pay Mrs. Breen the requested $9,000.00 per month. It is
unclear how this matter was resolved due to the limited, designated record on appeal.
On April 1, 2016, Mrs. Breen filed a motion and order to remove the
independent administrator, alleging that Ms. Landry failed to fulfill her duties of
collecting, preserving, and managing the property of the succession in accordance
with the law.” Ms. Landry opposed the motion on the basis that Mrs. Breen did not
allege that Ms. Landry committed any of the proscribed acts or omissions to justify
° The concursus proceeding was instituted to determine the proper recipient of the profit
sharing/pension benefits for Dr. Breen’s medical practice. On December 7, 2015, a consent
judgment was signed ordering the consolidation of the concursus proceeding and the succession
proceeding “subject to the concurrence of Judge Scott C. Gardner.” This designated record does
not contain a written concurrence from Judge Gardner, who signed the March 14, 2017 judgment
on appeal.
™ Mrs. Breen alleged that “assets of the estate are being wasted and falling into disrepair”:
“[Mrs.] Breen’s efforts to assist and encourage Ms. Landry to actually administer the succession
are met with open hostility, including threats to sell the family home from under her”; and “Ms,
Landry has teamed up with Dr. Breen’s adult children and has squandered precious estate assets
and cash in a quixotic quest to prove [Mrs. Breen] civilly or criminally liable for Dr. Breen’s
death.”
the removal pursuant to La. Code Civ. P. art. 31828 nor could Mrs. Breen meet her
burden of proof. After a lengthy hearing on October 20, 2016 in which testimony
and evidence was presented, the trial court signed an order on November 9, 2016,
denying the motion to remove the independent administrator and further providing
a “specific finding of fact that removing the Administratrix and starting over with a
new administrator would not only cost the estate perhaps tens of thousands of
dollars, but would also delay the proceedings by many months or perhaps years.”
On October 20, 2016, Ms. Landry filed an “Accounting of Independent
Administratrix,” containing the most recent accounting for the succession.
Thereafter, on November 9, 2016, the date the trial court signed the order denying
the motion to remove the independent administrator, Ms. Landry filed a motion for
approval of interim accounting and for interim payment of $87,762.86 in
independent administrator fees and $30,795.46 in attorney fees, totaling
$118,558.32, which represented amounts billed through October 2016. Ms. Landry
also sought a retainer in order to continue in her duties as independent administrator
and, alternatively, sought to be discharged from her duties if a retainer was not
approved. Mrs. Breen opposed the motion, contending Ms. Landry’s requested
compensation was “patently unreasonable, given that [she] has abjectly failed to
satisfy her [La.] C.C.P. art. 3191 (A) duties of collecting, preserving, and managing
the property of the succession in accordance with law.” Mrs. Breen further
* Louisiana Code of Civil Procedure art. 3182 provides as follows:
The court may remove any succession representative who is or has become
disqualified, has become incapable of discharging the duties of his office, has
mismanaged the estate, has failed to perform any duty imposed by law or by order
of court, has ceased to be a domiciliary of the state without appointing an agent as
provided in Article 3097(4), or has failed to give notice of his application for
appointment when required under Article 3093.
The court on its own motion may, and on motion of any interested party shail, order
the succession representative sought to be removed to show cause why he should
not be removed from office. The removal of a succession representative from office
does not invalidate any of his official acts performed prior to his removal.
contended that there was no rational relationship between Ms. Landry’s billing and
any benefit to the estate.
With leave of court, Ms. Landry supplemented her motion multiple times to
add additional billing through January 2017. After a hearing on J anuary 19, 2017,
the trial court took the matter under advisement, further ordering that the
administrator submit all additional billings within ten days and providing Mrs. Breen
twenty-five days in which to provide objection to any of the bills submitted.
Thereafter, the trial court signed a judgment on March 14, 2017: (1) granting Ms.
Landry’s motion in part and finding her entitled to $115,675.82 in administrator and
attorney fees; and (2) relieving Ms. Landry of her responsibilities as independent
administrator, with no mention of an effective date.
On Mrs. Breen’s motion, the trial court issued an order on March 17, 2017,
staying that part of the March 14% judgment terminating Ms. Landry’s appointment,
pending completion of the imminent trial in the federal court litigation involving two
of Dr. Breen’s life insurance policies, in which Mrs. Breen was named as
beneficiary. Ms. Landry, representing Dr. Breen’s estate, was a party to the federal
litigation, wherein she and the Breen adult children opposed Mrs. Breen’s receipt of
the life insurance proceeds. After the federal trial, the federal district court rendered
judgment in Mrs. Breen’s favor, as claimant to the proceeds of the life insurance
policies. Pruco Life Insurance Co. v. Breen, 289 F.Supp.3d 777, 798-99 (E.D. La.
2017), aff'd, 734 F. Appx. 302 (Sth Cir. 2018) (per curiam).
On May 19 2017, Mrs. Breen filed a motion and order for appeal and
designation of record, specifically seeking relief from the March 14! judgment’s
award of administrator and attorney fees to Ms. Landry. On August 14, 2017, Ms.
Landry filed a motion to dismiss Mrs. Breen’s appeal for failure to pay the appeal
costs, which motion was denied. Ms. Landry also filed a motion to lift the stay of
the March 14" judgment after the federal court judgment was rendered, which the
trial court granted. The trial court signed a judgment on November 13, 2017,
granting the motion to lift the stay and terminating Ms. Landry’s appointment and
obligations as independent administrator of Dr. Breen’s succession, effective
October 26, 2017, which was the date of the motion hearing.
The March 14" judgment came before this court on appeal; however, the
appeal was dismissed for lack of appellate jurisdiction. Matter of Succession of
Breen, 2018-0002, 2018-0003 (La. App. Ist Cir. 12/13/18), 2018 WL 6567356(unpublished), writ denied, 2019-0292 (La. 4/8/19), 267 So.3d 617. This court
determined that the March 14" judgment awarding interim payment of independent
administrator fees and attorney fees, authorized by La. Code Civ. P. art. 3351, was
an advance on Ms. Landry’s compensation during the administration of the estate
and constituted an interlocutory judgment, which is appealable only when expressly
provided by law. La. Code Civ. P. arts. 1841 and 2083. Finding no express law
permitting an appeal of the March 14% judgment, this court dismissed the appeal.
Id. at *2.
Subsequent to the dismissal of the appeal of the March 14" judgment, the
former independent administrator’s attorney, Barbara Irwin, filed a Motion and
Application for Payment of Estate Debts and Incorporated Memorandum in Support
Thereof on August 26, 2019. According to Ms. Irwin’s motion, she and her law firm
served as counsel of record for the former independent administrator, Ms. Landry.
It was noted that the trial court’s March 14! judgment provided for the payment of
Ms. Landry’s fees and expenses, which expenses included Ms. Irwin’s fees through
December 2016. However, since December 2016 and through September 18, 2017,
Ms. Irwin and her law firm continued to represent Ms. Landry through the course of
several succession matters in litigation prior to Ms. Landry being permitted to
withdraw from her duties as independent administrator. As claimed in the motion,
the outstanding balance of attorney fees totaled $31,234.22 and the costs totaled
$4,081.78, which sums were evidenced in invoices attached to the motion. Also
attached as exhibits to the motion were two letters: one letter dated September 18,
2017, in which Ms. Irwin submitted a claim to the succession in accordance with La.
Code Civ. P. art. 3241 in the amount of $66,694.71, and another letter dated July 10,
2017, in which Ms. Landry, as administrator of the succession, received and
acknowledged the claim of Ms. Irwin’s law firm in the amount of $65,262.30,
representing the balance as of July 6, 2017, which also indicated that the claim would
be listed as a succession debt. According to the motion, a partial payment of the
outstanding balance of $65,262.30 was made, which left a balance owed by the
estate.”
Mrs. Breen opposed Ms. Irwin’s motion, contending that Ms. Irwin and her
law firm were owed nothing; that Ms. Irwin’s firm was indebted to the succession
for its “gross misfeasance and malfeasance”; that the fees and costs were not estate
debts; and that all of Ms. Irwin’s exhibits were unverified, self-serving hearsay. The
trial court held a hearing on March 5, 2020, receiving evidence and testimony from
Ms. Irwin and Mrs. Breen. At the conclusion of the hearing, the trial court ruled as
follows:
My appreciation of the facts as they have been laid out is that Ms. Irwin
was hired for litigation purposes, only for the administrator at the time,
Alyce Landry. She did what Ms. Alyce Landry asked her to do.
Whether it involved any direct contribution to the assets or liabilities of
the estate, we don’t know. Ms. Landry is not here to tell us.
But the bottom line is, a lot of times, litigation doesn’t necessarily
involve dollars and cents. It’s whether it may or may not involve
dollars and cents.
So I do find that her participation in the litigation was at the direction
of the administrator, who asked for it. I also understand that there is a
° The record contains a Satisfaction of Judgment filed on October 23, 201 7, which indicated
that the March 14" judgment was “full paid or otherwise satisfied.” Accordingly, the amount of
attorney fees sought by Ms. Irwin ($30,795.46) and previously approved by the trial court in the
March 14" judgment were paid subsequent to Ms. Landry’s acceptance of the outstanding attorney
fee balance of $65,262.30.
separate lawsuit for the alleged malpractice, malfeasance, misfeasance
-- I forget how it was characterized.
So the bottom line is, from the succession purposes, Ms. Irwin did what
she was asked to do by the representative. So for that reason, I’m going
to grant the motion for the $31,234.22, and the $4,081.78. But certainly
understand that if there’s anything about whether or not they should
have or shouldn’t have or anything like that, it’s more properly heard
in the -- and I’m just going to characterize it as a malpractice suit.
But as far as I’m concerned for the succession purposes only, she
represented the administrator. The administrator did whatever she
thought was in the best interest of the estate to monitor the litigation, to
be involved as necessary.
So I’m going to grant it.
There’s been no evidence asserted directly to rebut the prima facie
evidence that they were proper claims of the estate.
I’m going to go on the fact that there was a prima facie establishment
by the prior administrator and grant those.
The trial court later clarified that its “ruling is based solely on what has been
presented today and has nothing to do with the fees that Judge Gardner did ... My
ruling is limited to the 31 and change, and 4 and change in costs that we had
testimony about today.”
Also at the conclusion of the hearing, the trial court agreed that this judgment,
as well as the prior judgment dated March 14" should be designated as final pursuant
to La. Code Civ. P. art. 1915(B)(1). The trial court made such designation in light
of the fact that there were no other outstanding bills beyond what was submitted in
connection with the motion heard by the court and the fact that the administration
had since been terminated.
On April 27, 2020, the trial court signed a judgment granting the Motion for
Payment of Estate Debts filed by Ms. Irwin and her law firm, Pujol, Pryor & Irwin,
LLC, ordering the succession to make payment to Ms. Irwin and Pujol, Pryor &
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Irwin, LLC in the amount of $35,316.00 with interest from the date of judicial
demand, which payment was ordered to be charged against and paid from the assets
of the estate in priority to other claims in accordance with law. Further, the April
27" and the prior March 14" judgments were designated as final in accordance with
La. Code Civ, P. art. 1915(B)(1).
Mrs. Breen subsequently filed a “Motion for Appeal of the April 27, 2020,
and March 14, 2017, Judgments; Designation of the Record, & Motion to Stay” on
July 24, 2020. The trial court signed an order granting an appeal and staying that
portion of the April 27, 2020 judgment directing the payment to Ms. Irwin and her
law firm from the assets of the estate in priority to other claims pending the final
disposition of Mrs. Breen’s appeal of the judgment. On appeal, Mrs. Breen assigns
the following errors: (1) the trial court erred as a matter of law and abused its
discretion in awarding the independent administrator $115,675.82 in fees after
failing to permit Mrs. Breen’s counsel to cross-examine the independent
administrator; and (2) the trial court erred as a matter of law and abused its discretion
in awarding Ms. Irwin and her law firm $35,316.00 as a priority succession claim,
as Ms. Irwin never established that the bills were incurred for the benefit of the
succession.
APPELLATE JURISDICTION
The April 27, 2020 judgment granting Ms. Irwin’s motion to pay estate debts
and ordering the debt to be charged against and paid from the assets of the estate in
priority to other claims in accordance with law was certified as a final judgment in
accordance with La. Code Civ. P. art. 1915(B)(1). Additionally, within the April
27" judgment, the trial court certified as final the prior, separate judgment dated
March 14, 2017.
Pursuant to La. Code Civ. P. art. 2121, an appeal is taken by obtaining an
order therefor, within the delay allowed, from the court which rendered the
il
judgment. Hill International, Inc. v. JTS Realty Corporation, 2021-0157 (La.
App. Ist Cir. 12/30/21), __ So. 3d ___»___, 2021 WL 6328321, *3. Unless a party
litigant obtains a valid order of appeal duly granted by the trial court, there can be
no appeal. Noyel v. City of St. Gabriel, 2015-1890 (La. App. Ist Cir. 9/1/16), 202
So. 3d 1139, 1142, writ denied, 2016-1745 (La. 11/29/16), 213 So. 3d 392. See also
La. Code Civ. P. art. 2088. The order of appeal is jurisdictional; this lack of
jurisdiction can be noticed by the court on its own motion at any time. Noyal, 202
So. 3d at 1142. The failure of the appellant to obtain an order of appeal forfeits his
right to appeal. Rose v. Twin River Development, LLC, 2017-0319 (La. App. Ist
Cir. 11/1/17), 233 So. 3d 679, 684.
In Mrs. Breen’s motion to appeal, filed on July 24, 2020, both judgments —
the March 14" and the April 27" judgments — are cited as being appealed. However,
the order of appeal only stated as follows:
The foregoing considered, IT Is HEREBY ORDERED that this
appeal is granted, and that the Clerk shall prepare and lodge the record
as designated pursuant to C.C.P. art. 2128 in the Court of Appeal for
the First Circuit; and, the April 27, 2020, judgment to the extent that
the $35,316.00 awarded to Barbara L. Irwin and the firm of Pujol,
Pryor, & Irwin, LLC is to be “paid from the assets of the estate in
priority to other claims” is stayed pending a final disposition of Kacie
Breen’s appeal in the appellate court.
The only judgment mentioned in the order is the April 27" judgment and, at best,
the appeal order grants an appeal from the April 27" judgment. Moreover, the
Notice of Appeal issued by the trial court provided as follows:
NOTICE is hereby given that a Motion for Appeal has been
entered on July 24, 2020 upon motion of Kacie Breen and an order
granting the appeal was entered on August 3, 2020 from the Judgment
filed on April 7, 2020 and signed on April 27, 2020 and is returnable to
the First Circuit Court of Appeal as determined by law.
Similarly, the Notice of Lodging issued by this Court references only the
“Judgment(s) dated: 04/27/2020 Motion and Application for Payment of Estate
Debts filed by Barbara L. Irwin and the law firm of Pujol, Pryor, & Irwin, LLC.”
Because the order of appeal is jurisdictional, we find that our appellate jurisdiction
12
only attaches to the April 27, 2020 judgment, which is the only judgment properly
before us on review. We, therefore, dismiss the appeal from the March 14%
judgment, later certified as final within the April 27" judgment, for lack of
Jurisdiction and remand it to the trial court for the issuance of an order of appeal.
Prior to considering the merits of the appeal of the April 27, 2020 judgment,
we must determine whether the judgment was properly certified. See Capital
Management Consultants, Inc. v. Duhon, 2016-0703 (La. App. Ist Cir. 4/18/ 17),
227 So.3d 839, 842. Although the trial court designated the judgment as being final
and appealable under La. Code Civ. P. art. 1915(B), that designation is not
determinative of this court’s jurisdiction. Van ex rel. White v. Davis, 2000-0206
(La. App. Ist Cir. 2/16/01), 808 So.2d 478, 480. Appellate courts have the duty to
examine subject matter jurisdiction sua sponte, even when the parties do not raise
the issue. Motorola, Inc. v. Associated Indemnity Corporation, 2002-0716 (La.
App. Ist Cir. 4/30/03), 867 So.2d 715, 717 (en banc). The proper standard of review
for an order designating a judgment as final for appeal purposes when accompanied
by explicit reasons is whether the trial court abused its discretion. R.J. Messinger,
Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122.
In this case, the trial court acknowledged that the independent administration
of the estate was now terminated and that Ms. Irwin would have no additional bills
for her legal representation of Ms. Landry as independent administrator.
Accordingly, the trial court concluded that designating the judgment granting Ms.
Irwin’s Motion for Payment of Estate Debts as final was warranted. We do not find
that the trial court abused its discretion in designating the April 27, 2020 judgment
as final for appeal in light of the trial court’s reasons under the circumstances of this
case.
13
LEGAL PRECEPTS
Louisiana Civil Code art. 1415 provides as follows:
Estate debts are debts of the decedent and administration expenses.
Debts of the decedent are obligations of the decedent or those that arise
as a result of his death, such as the cost of his funeral and burial.
Administration expenses are obligations incurred in the collection,
preservation, management, and distribution of the estate of the
decedent.
Pursuant to the Official Revision Comments — 1997 to La. Civ. Code art. 1415,
administration expenses are “broadly defined to include expenses that are incurred
after death in preserving, safeguarding, and operating the property of the estate, such
as repairs, costs of maintenance and upkeep, interest attributable to a debt, and
custodial fees.” There are instances in which attorney fees incurred by the
succession representative may be classified as estate debts. See Succession of
LaRue, 2016-1146, 2016-1147 (La. App. Ist Cir. 7/20/17), 2017 WL 3083666, *7
(unpublished). Notably, legal expenses of administration incurred by an executor
on behalf of the estate are proper charges against the succession. Id. (citing
Succession of Bradford, 130 So.2d 702, 706 (La. App. 2d Cir. 1961)).
Additionally, while the estate may be liable for attorney fees incurred by the
administrator for services performed for the benefit of the estate, the estate is not
liable for attorney fees that benefit the administrator individually. Succession of
LaRue, 2017 WL 3083666 at *7; Succession of Reno, 2015-0854 (La. App. 1st Cir.
9/12/16), 202 So.3d 1147, 1154, writ denied, 2016-2106 (La. 2/10/17), 215 So.3d
701.
Pursuant to La. Code Civ. P. art. 3241, “[a] creditor of a succession under
administration may submit his claim to the succession representative for
acknowledgment and payment in due course of administration.” Louisiana Code of
Civil Procedure article 3242 provides as follows:
The succession representative to whom a claim against the succession
has been submitted, within thirty days thereof, shall either acknowledge
or reject the claim, in whole or in part. This acknowledgment or express
14
rejection shall be in writing, dated, and signed by the succession
representative, who shall notify the claimant of his action. Failure of
the succession representative either to acknowledge or reject a claim
within thirty days of the date it was submitted to him shall be considered
a rejection thereof.
Louisiana Code of Civil Procedure article 3243(1) and (2) provide, in part, that the
acknowledgment of a claim by the succession representative shall entitle the creditor
to have his claim included in the succession representative’s petition for authority to
pay debts and shall create a prima facie presumption of the validity of the claim.
However, “[i]f the claim is rejected in whole or in part by the succession
representative, the creditor to the extent of the rejection may enforce his claim
judicially.” La. Code Civ. P. art. 3246.
LEGAL ANALYSIS
In the sole assignment of error before us, Mrs. Breen challenges the April 27,
2020 judgment, contending that the trial court erred as a matter of law and manifestly
abused its discretion in awarding Ms. Irwin and her law firm $35 ,316.00 as a priority
succession claim, where Ms. Irwin never established that her bills were incurred for
the benefit of the estate. Relying on Succession of Reno, 202 So.3d at 1154, Mrs.
Breen contends that attorney fees incurred on behalf of a succession can only be
charged to the succession when the legal services were for the benefit of the
succession itself and not for the individual interest of the succession administrator.
At the hearing on March 5 , 2020, counsel for Ms. Irwin moved to offer, file,
and introduce an affidavit of Ms. Irwin attesting to and attaching the following
documents: (1) all relevant bills; (2) the proof of claim submitted to Ms. Landry; and
(3) Ms. Landry’s acceptance of the claim. Counsel for Mrs. Breen objected, and the
trial court withheld its ruling until after argument on the motion was had. After the
argument of counsel, but prior to receiving live testimony, the trial court stated, “I’m
going to admit the previously offered affidavits.” Nevertheless, the record fails to
establish that the affidavit and its attachments were provided to the court.
15
Counsel for Mrs. Breen offered and introduced four exhibits: (1) a letter dated
October 24, 2019 from counsel for Mrs. Breen to Ms. Irwin in which the claim
previously submitted by Ms. Irwin for legal fees was rejected, further stating that
“any alleged approval by the prior Administrator Alyce Landry is reversed and
vacated”; (2) a certified mail receipt corresponding to the October 24, 2019 letter;
(3) a copy of the Memorandum in Opposition to Ex Parte Motion for Stay of the
Administratrix Ability to Alienate Immovable Property and Motion to Strike
Pleadings filed on October 16, 2017; and (4) a copy of this court’s judgment in
Matter of Succession of Breen, 2018 WL 6567356.
At the hearing, the trial court heard testimony from both Ms. Irwin and Mrs.
Breen. According to Ms. Irwin, she was employed by Ms. Landry, the former
independent administrator, in order to participate as necessary in ongoing litigation
involving the estate or succession of Dr. Breen,!° Ms. Irwin contracted with Ms.
Landry, who was acting on behalf of the estate, and they agreed to a billable rate of
$200.00 per hour.!!
Ms. Irwin stated that there were seven ongoing lawsuits for which the estate
required an attorney to make an appearance, go to court, attend settlement
conferences, prepare pleadings, and attend depositions, if necessary, for the
protection and benefit of the estate. Some of the lawsuits required minimal
monitoring (i.e., the wrongful death lawsuit), but the majority of Ms. Irwin’s billing
concerned the federal proceedings in which the estate was named as a defendant.
0 According to Ms. Irwin, Ms. Landry is an attorney but is not a litigator.
'! Ms. Irwin also stated, “you have to [contract] through the administrator. That’s the only
avenue to — for the estate to have any capacity to exist, it has to be through the administrator. And
that’s with whom I worked and communicated.” See La. Code Civ. P. art. 3191(A) (providing
that a succession representative is a fiduciary with respect to the succession, having the duty of
collecting, preserving, and managing the property of the succession in accordance with the law)
and La. Code Civ. P. art. 3396.15 (providing that an independent administrator shall have all rights,
power, authorities, privileges, and duties of a succession representative).
16
Ms. Irwin prepared for and participated in the trial as well as the settlement
conferences for the federal proceedings.
Counsel for Mrs. Breen questioned what benefit the estate received from Ms.
Irwin’s services, to which Ms. Irwin responded as follows:
Well, sir, again, as counsel for the estate, I had to appear in court.
I had to make pleadings. I had to respond accordingly. I had to protect
the interest of the estate where it was necessary, whether there were
deadlines in place or not. I’m not sure.
I understand you disagree with the positions that I took as a
lawyer. But I represented the estate, and I protected the estate. The
estate didn’t miss any litigation deadlines. There were no defaults taken
against the estate in any of the litigations. And I participated as I was
required to do as counsel for the estate.
The questioning continued, as follows:
Q. Did any work that you did for which you billed ultimately the
$66,000, did any of that bring any money in to the estate?
A. I’m not sure. I don’t know.
Q. You don’t know? Can you identify one red cent of money that
any of your work generated for the estate?
A. I don’t know. That wasn’t the purpose of what I was doing.
That’s not something that I would have accounted for or devised.
Q. Okay. So it is your position that even though you don’t think the
succession is a separate legal entity, that the estate should immediately
give you $31,000 for work that didn’t produce any income whatsoever
for the succession, right?
A. These are my legal bills, representing the estate, in necessary
litigation matters, which required representation. And I was hired to do
a job. I did my job. And yes. I would like for the estate to pay me for
that work.
Through the questioning by her own attorney, Ms. Irwin testified that she
generated bills while serving as the attorney for the administrator of the estate of Dr.
Breen, that she recorded her bills contemporaneously with the activity performed,
and submitted bills on a monthly basis. According to Ms. Irwin’s testimony, the
accurate and total amount of her bills from December 1, 2016 to the end of her
17
representation was $31,234.22.!? She further testified that these bills related to
litigation involving the estate or succession of Dr. Breen and were all generated as a
result of the matters for which she was retained by Ms. Landry. Ms. Irwin was asked
specifically about various lawsuits in which she billed for her services and testified
as follows:
Q. We talked about the federal interpleader lawsuit. The succession
was named, or Alyce Landry as administrator for the succession, was
named a party to the federal interpleader suit?
A. I don’t remember exactly who was named. But yes. She was a
defendant in those interpleader actions, yes.
Q. So your involvement was forced just because whoever you were
representing was named as a party in the federal interpleader suit?
A. Yes.
Q. And the federal interpleader suit would have affected the estate
if the money ultimately came to the estate, right?
A. Yes.
Q. Same thing with the paternity. The paternity lawsuit, that had
some effect on the succession or estate of Wayne Breen, correct?
A. It did, yes.
Q. The concursus proceeding, does that also have an effect on the
estate?
A. — It did have an effect on the estate, yes.
Q. So all the legal fees that you generated all have to do with you
overseeing the litigation that had an effect on the succession of Wayne
Breen?
A. I was either in a position to participate in it because it was
necessary on behalf of the estate, or I was just simply monitoring it.
Which then the billing was extremely limited, and my bills reflect that.
During Mrs. Breen’s testimony, she stated that she is the current administrator
of the estate.'? Mrs. Breen testified that she has prevailed or was successful in every
litigation in which Ms. Irwin was involved—the federal litigation, the wrongful
'2 Ms. Irwin did not testify as to the amount of costs incurred and billed to the estate.
'? The designated record does not otherwise reflect who the current administrator is, nor
does the record reflect the timing of Mrs. Breen’s appointment as administrator.
18
death case, and the concursus case. She further testified that neither Ms. Landry nor
Ms. Irwin ever sided with her in any of the litigation. Upon being asked why she,
as the current administrator of the estate, takes the position that Ms. Irwin should
“not get any of this money she asks for,” Mrs. Breen responded as follows:
I don’t really believe she did anything for the estate. Besides oppose
me getting the life insurance and mounting a case against me for being
able to receive the life insurance, and trying to prove that I shot my
husband in an unjustified offense. That’s basically all she did.
Notwithstanding her position, Mrs. Breen acknowledged that she could not dispute
that the bills Ms. Irwin submitted were related to Ms. Irwin’s overseeing seven
lawsuits in litigation involving the succession of Dr. Breen.
In view of the testimony, Ms. Irwin was able to establish that the bills for her
legal services, totaling $3 1,234.22, were incurred on behalf of and for the protection
of the estate. She identified all seven cases in litigation in which she was hired by
Ms. Landry to monitor and participate in on behalf of the estate. The fact that she
did not generate any money for the estate is not determinative in this matter. As
noted by the trial court in its oral reasons, “a lot of times, litigation doesn’t
necessarily involve dollars and cents.” None of the evidence or testimony presented
by Mrs. Breen established or indicated that the attorney fees were not incurred on
behalf of the succession or that the attorney fees were incurred for the individual
benefit of the independent administrator previously appointed by the court through
a consent judgment.
The trial court was in the best position to evaluate the testimony of Ms. Irwin
and Mrs. Breen, and this court cannot disturb the trial court’s reasonable credibility
evaluations and reasonable factual inferences. See Stobart v. State through
Department of Transportation and Development, 617 So.2d 880, 882-83 (La.
1993). After reviewing the entirety of the record, we are unable to conclude that the
trial court “erred as a matter of law” or “manifestly abused its discretion,” as argued
19
by Mrs. Breen, in awarding Ms. Irwin and her law firm, $31,234.22 (of the
$35,316.00 awarded) as a priority succession claim for legal services rendered for
the benefit of the succession of Dr. Breen. We do not find merit to this assignment
of error. However, without testimony or documentary evidence in the appellate
record to support the additional $4,081.78 awarded, we find error in this portion of
the trial court’s award and amend the April 27, 2020 judgment accordingly.
CONCLUSION
Based upon the foregoing, we dismiss the appeal from the March 14, 2017
judgment for lack of jurisdiction and remand it to the trial court for the issuance of
an order of appeal. Further, we amend the April 27, 2020 judgment to reduce the
amount awarded to Barbara L. Irwin and Pujol, Pryor & Irwin, LLC to $31,234.22
and affirm, as amended, the April 27, 2020 judgment. Costs of this appeal are
assessed one-half to Kacie M. Breen and one-half to Barbara L. Irwin and Pujol,
Pryor & Irwin, LLC.
APPEAL OF THE MARCH 14, 2017 JUDGMENT DISMISSED AND
REMANDED; AMENDED AND AFFIRMED, AS AMENDED, AS TO THE
APRIL 27, 2020 JUDGMENT.
20
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0802
IN THE MATTER OF THE SUCCESSION OF WAYNE EDMOND BREEN
Consolidated with
2021 CA 0803
DOCTORS FOR WOMEN MEDICAL CENTER, LLC, CRAIG M.
LANDWEHR, M.D., IN HIS CAPACITY AS A TRUSTEE OF THE
DOCTORS FOR WOMEN MEDICAL CENTER, LLC PROFIT SHARING
PLAN AND TRUST
VERSUS
PATRICK VERNON BREEN, RYAN MICHAEL BREEN » DEVON
THOMAS BREEN, BRIDGET BREEN DUNBAR, SEAN MICHAEL
BREEN, KACIE BREEN » INDIVIDUALLY AND IN HER CAPACITY AS
TUTOR OF THE MINOR CHILD, AIDEN BREEN, HUB
INTERNATIONAL GULF SOUTH LIMITED, A DIVISION OF HUB
INTERNATIONAL MIDWEST LIMITED, MERRILL LYNCH, FENNER
AND SMITH, INC., AND WAYNE E. BREEN, M.D., LLC
aby’ PENZATO, J., dissenting in part.
I respectfully dissent from that portion of the majority opinion dismissing
the appeal of the March 14, 2017 judgment. Kacie Breen filed a motion for appeal
that clearly references both the March 14, 2017 judgment and the April 27, 2020
judgment. The August 3, 2020 order of appeal states that “this appeal is granted.”
Appeals are favored in the law and should be maintained unless a legal ground for
dismissal is clearly shown. Ranson y. Cooper, 2016-0029 (La. App. 1 Cir.
9/19/16), 228 So. 3d 1254, 1257. Moreover, to the extent that the Notice of
Appeal issued by the St. Tammany Parish Clerk of Court references only the April
27, 2020 judgment, I believe the appropriate remedy would be to remand the
matter for the limited purpose of instructing the Clerk of Court to issue an
amended Notice of Appeal specifying the dates of both Judgments. See Hill
International, Inc. v. JTS Realty Corporation, 2021-0157 (La. App. 1 Cir.
12/30/21), __ So.3d__, __, 2021 WL 6328321, *4,
I agree with the majority decision amending and affirming the April 27,
2020 judgment.